What does a marital agreement have to do with your Will? A Will gifts property at the end of life. To determine how to gift your property, it is necessary to know what you own. This is where a marital agreement enters the picture. Marriage changes your relationship to your property; once you are married, Texas law defines what belongs to you, your spouse, and/or both of you.
Generally speaking, Texas law divides marital property into community and separate property. Apart from some exceptions (for example, gifts and inheritance), community property is property acquired during the marriage. Separate property is property acquired prior to your marriage. Mere title to property alone does not necessarily determine ownership. What matters is when the property was acquired. If property is community, it belongs to both you and your spouse.
Now back to the connection with estate planning. If property is gifted in a Will to someone other than a spouse, it is possible to unintentionally gift property co-owned by your spouse because you could be gifting community property. When this happens, your executor will need to determine the proper method to divide the property between your beneficiary and spouse. Depending on the property and length of marriage, this process can complicate the administration of your estate for your executor, spouse, and other beneficiaries.
Through the use of a marital agreement, spouses can alter the default marital property regime under Texas law and specify property belonging to each spouse. In doing so, you also clarify your Will and ease the administration of your estate, especially in relationships with children from different marriages.
Questions about marital agreements or estate planning? Contact us.
